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Zittrain Torts Playlist Spring 2013

II. Crary's Affidavit

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STATE OF NORTH DAKOTA COUNTY OF CASS IN DISTRICT COURT EAST CENTRAL JUDICIAL DISTRICT

Martin Wishnatsky, Civil No. 96-2297 Plaintiff, vs. AFFIDAVIT OF PETER B. CRARY David W. Huey, Defendant.

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Peter B. Crary, being duly sworn, deposes and says:

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1. I am a member of the North Dakota Bar Association. My law office is at 1201 12th Avenue North in Fargo. My legal assistant is Martin Wishnatsky.

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2. In January of 1996, my offices were on the third floor of the old Herbst Building at 16 Broadway in downtown Fargo. Mr. Wishnatsky occupied an office across the hall from me. The offices had full-length glass-paneled windows and doors.

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3. On the morning of Wednesday, January 10, 1996 I was having a conversation in my office with North Dakota Assistant Attorney General David Huey, when Mr. Wishnatsky opened the door and walked in. Martin was carrying certain papers which were pertinent to my discussion with Mr. Huey and was entering the room to deliver them to me as part of his duties as my legal assistant. It is quite common for Martin to be in and out of my office during the day. There was nothing unusual in his entering my office at this time.

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4. Mr. Huey had been conducting himself in an orderly manner during our conversation. However, when Mr. Wishnatsky began to enter my office, he seemed to undergo a personality change and went into an emotional "spike." He snarled at Mr. Wishnatsky to get out of the room and then, as it appeared to me, physically forced Martin out into the hall by thrusting his body weight against the door. I believe he also made physical contact with Martin's body as well as the door. I was quite startled at this behavior because (1) it seemed to be a sudden personality change on Mr. Huey's part and (2) it seemed as if, prior to this change in behavior, we were having what I would characterize as an amicable exchange in my office.

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Frankly, I simply had no prior experience of a visitor to my office at 16 Broadway or in any other location becoming physically aggressive and hostile until I witnessed this behavior by Mr. Huey. Mr. Huey's actions were completely unprovoked by Mr. Wishnatsky who had not previously said a word to him.

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5. Mr. Wishnatsky reentered my office to deliver the papers to me and made a brief and respectful statement to Mr. Huey that as a public servant he had an obligation to treat the public with respect and courtesy. Mr. Huey then went into an irrational tirade, stating that he would no longer discuss anything with me, that his time was too valuable, etc., and stormed out into the hall. Mr. Wishnatsky called after him, "David," attempting, it seemed to me, to calm him down. Mr. Wishnatsky gave me the papers he had originally entered my office to provide. He then left. Mr. Huey re-entered the office and we resumed our conversation.

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6. Certainly Mr. Huey's "spike" was unusual and not in keeping with the geniality that is becoming a businessman/lawyer/public servant. Furthermore, over my years of serving the public, I have never witnessed such an abrupt ("spike") change of personality!

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7. Obviously I regard this as a very serious matter and certainly remain available should I be called upon further to elaborate on this event.

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8. Attached to this affidavit as Exhibit A are enlargements of photos taken subsequent to the events described above which depict a re-enactment of Mr. Wishnatsky entering my office at 16 Broadway. The photos show the glass paneled-door and windows. The chair Mr. Huey was sitting in is depicted in the location it occupied at the time of the incident.

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9. Any visitor to my office was visible through the glass in the door before entering. My desk was positioned facing the door.

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Peter B. Crary: